Archive for the ‘Case Preparation’ Category

From time to time, we bring you tidbits that we don’t want to devote a whole blog post to but still find interesting. Today we’ll cover medical devices that are not FDA approved, the belief that social media has killed privacy, and a novel experiment in which jurors help judges make sentencing decisions.

You might want to make sure that medical device is FDA approved…

This one is hard to believe but a non-FDA approved medical device was sold (and ostensibly used) about 18,000 times before the government shut it down. The device was the OtisKnee which was used in surgeries for knee replacement. It is essentially like a specialized carpentry device which allowed the surgeon to line up a bone saw precisely and (allegedly) speed both surgery and recovery. The corporation making OtisKnee had not sought FDA approval and when they did, they were rejected due to failing to prove the product safe and effective. Read more about this situation at Pacific Standard magazine and remain aware of how easy it is, in the $110 billion a year medical device industry, for tools to be used quite widely without FDA approval.

Privacy is dead in the age of social-networking

Most of us likely won’t find this hard to believe but it is still eye-opening. In September and October of 2014, 6,063 adults were surveyed about privacy in the age of social media. What is unusual, is that the sample included people from all around the world— and in every country— the majority believe privacy is dead.

Judges asking for sentencing recommendations from jurors who heard the case

One of the questions sometimes posed to jurors is whether the conduct of the litigants reflects how they want business to be conducted in their community. It takes the question from a purely legal one to one that has a relationship to their day-to-day lives, their values, and their belief about business and society. In other words, it taps into their community sense of justice. And here’s a story of a judge asking jurors for their sense of community justice. This was a case involving an unrepentant man convicted of “possessing, receiving, and distributing child pornography” with more than 1500 sexually explicit images of children on his computer (some less than 12 years old). The prosecutor wanted 20 years (the statutory maximum). The judge polled the jurors and the average of their sentence recommendation was only 14 months. The judge then sentenced the defendant to “the statutory minimum of five years in prison”. The article itself has multiple perspectives on whether the judge should have done this polling and then apparently made a decision for sentencing informed by juror sensibilities. It is well worth reading.

At least that is the headline we’ve been reading about this research. We’ve written before about the psychopath. They are typically characterized as scary and “other” than us—not like us at all. They have been described as without conscience, and yet some of them are involved in corporations rather than prison. There actually are researchers who would say that because the brains of psychopaths are abnormal—they should not be punished for their behavior. Today’s spotlight is on an article which is of that ilk. These researchers say “one in five violent offenders is a psychopath”. That number is not really surprising since prevalence rates for psychopathy have been estimated at 15% to 25% of the male offender population. The researchers continue by saying psychopaths have higher rates of recidivism and do not seem to benefit from rehabilitation. The researchers say they know “why” this happens and they hope their work will improve childhood interventions to prevent or at least decrease violent behaviors in those with psychopathy.

They begin by reviewing the literature on the cold and premeditated aggression of the psychopath and posit that the behavior is due to abnormal and distinctive brain development that can be seen from a young age. The researchers recruited 50 men (aged 20 to 50 years; reading age higher than 10 years; no history of major mental or neurological issues) to participate in the study. Obviously, they chose some men who reported they were healthy, and others with a documented history of violent offenses. The study used the fMRI to examine brains, looking for similarities and differences in the brains of healthy non-offenders and violent offenders (some with psychopathy and some with antisocial personality disorder but who did not meet the criteria for psychopathy).

Their subjects were paid minimum wage for their time and included:

12 violent offenders with both antisocial personality disorder and psychopathy, and

20 violent offenders with antisocial personality disorder but not psychopathy, and

18 healthy non-offenders.

The offenders had been convicted of various violent crimes (e.g., murder, rape, attempted murder, grievous bodily harm) and the researchers recruited them from Britain’s probation system. The non-offenders were recruited from unemployment offices and from community webpages. All participants were interviewed and scored on the Psychopathy Checklist and the offenders’ criminal records were reviewed. Participants were asked to not use alcohol or illicit drugs for 2 weeks before and during the study and were given urine and saliva tests at each research session. They were also given an IQ test (the Wechsler Adult Intelligence Scale, third edition) and completed a reactive-proactive aggression questionnaire.

The researchers reported differences in brain regions related to empathy and the lack of empathy, processing prosocial emotions (like guilt and embarrassment) and moral reasoning. These regions are also associated with the ability to learn from rewards or punishment. If you don’t experience discomfort when you do something incorrectly, you are less likely to change your behavior the next time. As in “why can’t that boy stay out of trouble?” These researchers believe they have an idea about why junior keeps messing up.

Contrary to the attention grabbing headlines, it is not that psychopaths cannot learn from punishment. And they do “register” punishment. It is just that they do not modify their behavior after being punished. The researchers believe that the psychopath may fail to consider the negative consequences of an action and instead only focus on the positive. When caught, the psychopath is punished, and often incarcerated. Upon release, however, the psychopath is much more likely to re-offend and thus, is seen as not changing behavior as the result of punishment.

The researchers recommend that parents of children with psychopathy be taught “optimal parenting skills” in order to reduce the conduct problems among their children “except amongst those who are callous and insensitive to others”. They believe this sort of disciplined parenting, which works consistently to teach conduct disordered children the consequences of their actions, can interrupt the abnormalities of brain structure and actually modify behavior (and modify the brain at an age when the brain is more plastic and susceptible to change).

There are obvious concerns with this recommendation. In short, the impact of such a label (especially for pre-teens) is frightening. The New York Times wrote a plain language article on whether you can call a 9-year-old a psychopath which generated more than 600 comments. How would parents change their view of their child if they were told the child was a budding psychopath? How would teachers change their view of a child labeled a psychopath? How would parents and teachers change their behavior if a child was given that label? We know what happens when children are diagnosed with learning disorders, labeled “slow” and so on in the school system. They are expected to perform at a lower level and they do.

There is a huge body of literature on the “halo effect” (easily found through internet searches). Among kids in school, if even well-intentioned teachers are told that a student is a slow learner or a discipline problem, they later report that the student couldn’t understand as well as others, or had problems getting along. Conversely, if the reputation of a student is positive, the teacher is likely to spend more time and attention being helpful and supportive. Labels are dangerous, because they tend to allow people to stop looking carefully and using objective judgment. And with children, it can put them on paths for good or ill that are later very difficult to change.

From a litigation advocacy perspective, what does this mean? Let’s assume that these researchers are correct and the brain of the psychopath is different, and you can see those differences from a very young age. Does that mean psychopaths should not be held responsible for their behavior? That would likely not play well with an audience of jurors since the violent crimes of the psychopath are often heinous and clearly premeditated. Could they perhaps be thought of as legally responsible but not morally responsible? It is truly a dilemma for the attorneys involved and for the jurors who hear the case facts.

From the perspective of a world in which genetic coding or fMRI data is centrally and digitally maintained for entire lifetimes, there have long been concerns about how the data could be (mis)used. Of course it is highly confidential and protected by numerous laws, but so is my credit card information, my social security number, et cetera. If it was communicated to schools, employers, medical professionals, etc., it could permanently alter opportunities to live successful lives. And if the person already has psychopathic markers, surely knowing that isn’t going to improve their ambition toward good citizenship.

We’ve seen the claims that people don’t find brain scans as alluring as they used to, but here is a study that says, “not so fast!”. It’s an oddly intriguing study involving not only invoking pretty pictures of brain function but also political affiliation and how that factors in to what one chooses to believe.

Much attention over recent years has been given to “an attack on science”, with many public figures (including elected officials) insisting that evolution is a hoax, climate science isn’t real, and vaccines are somehow more harmful than helpful. [For the record, here at the Jury Room we are big-time fans of science. I want to believe that our readers knew that already.]

Researchers discuss perceptions of “soft science” and “hard science” and the general sense that “hard science” is viewed as more reliable, accurate and precise. They describe multiple experiments showing people tend to prefer “hard science” data to data offered by those in “soft science”. The question these researchers focused on was whether “hard science” data (in this case, a brain scan) would be preferred over “soft science” data (in this case, cognitive test results). They also wondered if this preference (for “hard science” or “soft science” data) would be mediated by political orientation.

In the study (106 participants, 83 women, 23 men; ranging in age from 18 years to 47 years with an average age of 19.6 years; 77 identified as White, 17 said they were African-American, and “five or fewer” identified as Asian American, Latino/Latina or other) completed a pretest online which included two questions about their political preference (both used by the American National Election Studies).

Generally speaking, do you think of yourself as a Democrat Republican, Independent, or something else?

If you selected Democrat or Republican for the previous question, would you call yourself a strong Democrat or Republican or a not very strong Democrat or Republican?

Only those participants who identified as either Democrat or Republican were eligible to participate in the study which they were told would involve them reading about an ethics violation and then making judgments about the case.

In the study itself, participants read a one-paragraph case description about a politician elected to office in a geographically distant state who had recently been cited for three ethical violations. The paragraph informed them the ethics committee had questioned the politician’s memory and asked him to have an evaluation done on his memory to determine if memory issues would prevent him from carrying out his duties as an elected representative. Finally, the participants read that if the testing determined the politician was impaired, he would be forced to resign and the governor of the state would appoint a replacement to serve until the next election. The paragraph description concluded by saying the governor had announced that any replacement appointees would be members of the same political party as the governor.

There were (you knew this was coming) several variations in the information the participants read about the politician and his situation.

Half of the participants read that the politician tested was a Democrat and the governor of his state was a Republican. The other half read that the politician was a Republican and the governor of his state was a Democrat.

The researchers paid attention to the political identification of the participant and if the participant said they were Republican and read about a Republican politician—they were placed in a group for analysis that was labeled in-group. If, on the other hand, a Republican participant read about a Democratic politician, they were placed in a group labeled out-group for analysis purpose. (The same applied vice versa when party preference is opposite.) Further, if the participant endorsed a strong affiliation politically, they were classified in the strong political identification group and if they endorsed a weak affiliation politically, they were classified in the weak political identification group.

After reading the initial description of the situation, all participants read a two-paragraph description of an expert evaluation of the politician. The expert mentioned in this description was a “Dr. Daniel Weinberger”. The participants received differing information about how Dr. Weinberger had evaluated the politician’s cognitive function.

Half the participants read that Dr. Weinberger reviewed the politician’s medical history and gave him verbal or paper and pencil tests (commonly used by neuropsychologists).

The other half of the participants read that Dr. Weinberger reviewed the politician’s medical history and conducted an MRI of the politician’s brain. (It is important here to note that no MRI images were shown. All the participants saw were words describing the process and then, the outcome.)

The second paragraph offered a description of the results of the evaluations in ways consistent with either verbal or paper and pencil tests or an MRI. For all participants, the second paragraph ended with identical statements saying that the expert concluded the “politician was suffering from beginning-stage Alzheimer’s disease, that symptoms will continue, and the symptoms will interfere with the politician’s ability to perform his duties”.

And here are the findings:

Biologically based information (i.e., the brain MRI) was viewed more favorably (69.8% said the evidence the politician had early stage Alzheimer’s was strong and convincing) than the behaviorally based (i.e., cognitive testing) information (only 39.5% said the evidence the politician had early stage Alzheimer’s was strong and convincing).

When asked to identify the one most important reason they felt the way they did about the evidence presented, those who saw the behavioral evidence said it was subjective and perhaps unreliable or irrelevant—more than 15% said the neuropsychological testing was unreliable or irrelevant. Not a single participant who saw the biologically based evidence said the MRI evidence might be unreliable—in fact, they saw it as objective, valid and reliable. (Anyone with any knowledge of the validating research and very detailed manuals accompanying psychological tests might find this, as the researchers say, “perplexing”. Of course, those who have that knowledge base would not qualify for inclusion in this study.)

Those participants who were in political out-group assignments (that is, Republican participants who read about a Democratic politician or Democratic participants who read about a Republican politician) were more likely to discount the behavioral science evidence than those in political in-group assignments.

In short, in this study, participants saw the MRI as more reliable and relevant than the cognitive testing, and those with strong political identities discounted the cognitive testing even more than those without the strong political sense of self.

Despite the reality that Alzheimer’s would always be diagnosed with cognitive testing, and brain scans used after testing was completed to rule out other explanations for impairments identified by testing—these participants preferred the verbally described brain images of “hard science” to the low-tech paper-and-pencil tests of the neuropsychologist. It’s a finding that underscores the importance of expert testimony informing jurors of how a diagnosis is made so they know if testing was performed because of the “wow” factor of a colorful MRI or to offer a research-based assessment of brain/memory impairment.

In other words, don’t believe everything you read– jurors can still be seduced by what looks like “hard science”. Your task is to show them what scientific findings are truly backed up by years of scientific research and development.

Last month we were asked to provide internet research on a very large jury panel, and to complete it overnight. What that means is we want to find out as much as we can about the attitudes, values and behavior of those in our venire panel. We do that background research on the internet and on multiple sites. It is painstaking work and must be accurate, no matter how late (or early) it gets. In this case, we started about 3pm one day and finished up about 5am the next morning (with the help of pizza delivery, lots of peanuts, and ample caffeine).

We’ve noted before that pretrial juror research can result in hilarity only achievable in the wee hours of the morning as exhaustion sets in. While, in this research batch, we found a plethora of selfies with duck-faces (mostly by women), today’s research article was garnering lots of press while we were pounding our keyboards (and then sleeping).

This particular research finding does not surprise us at all. When you see men with all sorts of selfies on social media—particularly shots showing off their physique, musculature, and general buffness—what might you conclude? If you say “narcissist”—then you agree with today’s researchers.

The 800 participants completed scales measuring self-objectification (e.g., how much the individual values their physical appearance above other traits, to see the self-objectification scale questions, follow the link above and scroll to page 120 of the document that opens), and the dark triad (e.g., psychopathy, narcissism and Machiavellianism; to see this scale’s questions, follow the link and see items in Table 8 on page 429 of the document that opens).

In addition to completing these scales, the participants also estimated the time they spent on social networking sites daily, reported how often they posted selfie photos and, whether they edited the photos they posted to enhance their appearance.

And here are the (not particularly shocking) findings:

Men who spent more time (the average in this study was 78.73 minutes with a maximum report of 16 hours a day) on social media sites each day were more narcissistic and higher in the trait of self-objectification.

Men who posted more selfies were more narcissistic and psychopathic.

Men who edited their photos before posting them were more narcissistic and higher in the trait of self-objectification.

The researchers opine that men high in dark triad traits (narcissism, psychopathy and Machiavellianism) will edit photos before uploading them to social networking sites so as to present themselves in the best possible light and attract short-term partners. The researchers call these “cheating strategies”—but they could just as easily be called “editing photos to be more flattering”.

We want to point out that although these men “higher in dark triad traits” did measure higher in narcissism, psychopathy and Machiavellianism—their scores remained in the normal range and could simply indicate good self-esteem.

While most of the mainstream media coverage we’ve seen has reported this fact—it tends to be tucked in at the bottom of the coverage, and you will be unlikely to see headlines trumpeting, “Men With Good Self-Esteem Post More Selfies!!!”.

So therein lies the dilemma. It is easy to make assumptions about lots of selfies on male social networking accounts. But drawing assumptions from one piece of data is always risky.

An example from this most recent round of research was the young male who had only one book listed on his Facebook profile under books he’d read: The Stoner Cookbook. It would have been very easy to write him off as “just a stoner”, but there were other data points that showed him to have much broader interests and to be a reasonable prospective juror.

Today’s research is just one study that has taken off in the mainstream media (like the study on criminal defendants wearing eyeglasses that was so misinterpreted). “Selfies” are one data point when you are doing juror research before voir dire. They may be an important point of data, depending on content. On the other hand, they may not be relevant, and assumptions leading to incorrect conclusions can undermine your painstaking research.

You cannot really answer “neither” to this question, it’s an either/or sort of query. If you know little about either, you may blurt out “jail”, and that would be a little unwise according to today’s research. Apparently, those that do know a little about jail versus prison would much rather go to prison than spend much time at all in jail.

The researchers offer a convincing literature review positing that jail is a much more volatile and dangerous environment than prison. They then describe how they randomly selected 3,620 adults living in Kentucky and mailed questionnaire packets and several follow-up postcards encouraging completion of the questionnaires. Of the 3,620 packets mailed out, 1,313 questionnaires were returned (a 36.3% response rate). The sample was generally representative of the Kentucky state population although slightly more educated and male. Most of those returning questionnaires were either Black or White and so the researchers only included those who reported being either White or Black in the final sample of 1,183 respondents. The final sample was 55% male and 93.9% White. Most of the respondents (71.3%) were either married or cohabiting, the average age was 51.4 years and the average educational level achieved was 13.33 years of formal education. One in five had annual incomes over $75K and thirty-four (2.9%) reported they had been convicted of a felony at some point in their lives.

The questionnaire packet itself was 8 pages long. Respondents were given brief descriptions of county jail and a number of alternative sanctions (such as boot camp, electronic monitoring, or regular probation). They were then asked to consider having been sentenced to 12 months of medium-security imprisonment and asked how many months of an alternative sanction they were willing to serve (in various environments/alternatives) in order to avoid the year in prison.

Here are some of the findings:

Prison was not seen as the most punitive sanction—that award was given to boot camp with county jail time coming in second. In fact, boot camp was believed to be twice as punitive as a medium security prison and county jail was not far behind. (Respondents were willing to spend 6 months in boot camp or 8.37 months in county jail in order to avoid a year in prison.)

Respondents ranked regular probation as the least punitive sanction and said they would serve 26.59 months on probation to avoid a year of prison.

Those who had been convicted of felonies at some point in their lives responded differently. They were only willing to spend 6.55 months in jail to avoid prison, compared to those without felony convictions who said they would spend 8.44 months in jail to avoid a year in prison.

When considering both those with lower incomes (below $20K annually) and those with felonies, the researchers reported these two groups felt that jail was more punitive than prison to a higher degree than others in the sample. Since, according to the researchers, these two groups are more likely to have been to jail or experienced vicarious jail time of neighbors and relatives—their sense that jail is a harsher environment than prison gives credibility to the overall study results.

In summary, say the researchers, everyone participating in the study seemed to believe that jail was significantly more punitive than prison. And if you still are not convinced, here’s a table from the article itself that shows a comparison of jail and prison. If you can choose, it seems it is likely better to choose prison.